Decision OFFICE OF THE HEARING EXAMINER
CITY OF YELM
REPORT AND DECISION
CASE NO.: APPEAL OF BOUNDARY LINE ADJUSTMENT DENIAL
BLA-04-0099-YL APP-04-0128-YL
APPELLANTS: Kathyrn Dotson
16440 Middle Road SE
Yelm, WA 98597
Freestone DFF Yelm II LLC
J. Scott Griffin, Jr.
Puyallup, WA 98373
SUMMARY OF REQUEST:
Kathyrn Dotson and Freestone DFF Yelm II LLC appeal the denial of a boundary line adjustment between two parcels of land currently under the ownership of Ms. Dotson.
SUMMARY OF DECISION:
Appeal granted, subject to conditions.
PUBLIC HEARING:
After reviewing Planning and Community Development Staff Report and examining available information on file with the application, the Examiner conducted a public hearing on the request
as follows:
The hearing was opened on October 12, 2004, at 9:00 a.m.
Parties wishing to testify were sworn in by the Examiner.
The following exhibits were submitted and made a part of the record as follows:
EXHIBIT "1" - Planning and Community Development Staff Report and Attachments
GRANT BECK appeared, presented the Community Development Department Staff Report, and testified that the City finds that the BLA fails to meet the criteria for approval
based upon the land use area requirements. The application does not comply with the density or Health Department requirements. The underlying issue is how the property developments.
The code requires a one acre minimum lot size for homes served by an on-site well and septic system. The lots created do not meet the density requirements for maximum and minimum lots.
WILLIAM LYNN, attorney at law, appeared on behalf of the appellant and testified that the issue is whether the City can impose new development regulations on a home where no changes
are proposed. The initial decision referred to the Health Department and minimum density. Then in the staff report they add another reason which is an attempt to get around the subdivision
code. The appellant owns two parcels of property consisting of ten and eight acres respectively. The house is presently served by a looped driveway with the garage on the right side
of the home. The City told the appellant that she would need to change the access point, but she can’t do that and still access the garage. They desire to develop the balance of the
property, but to leave the house as it presently is. The City wanted her to change the access from the street, but she cannot and therefore proposes no changes. The City also required
her to hook-up to sewer and water and make street frontage improvements. He doesn’t believe the City can do that as the home creates no new impacts. They submitted a boundary line adjustment
to segregate her home from the balance of the parcel and will make no changes to that parcel. Concerning the Health Department issue, they have seen nothing from the Health Department
saying that the BLA creates a problem. Normally, the Health Department makes the decision on septic and water, but staff never routed the request to the Department due to the existing
structure. They want a chance to meet Health Department requirements. The Examiner could overturn the ruling and impose a condition of meeting Health Department requirements. They could
also create easements for a reserve drainfield and can also meet the requirements by hooking up to sewer and water. They will agree to do that. The City is using the Health Department
as a reason, but it is not valid. Concerning the density, they do not exceed the maximum density. They do not meet the density of three dwelling units per acre now. By shrinking the
lot they actually come more into compliance. RCW 58.17.040(6) does not prohibit a lot from exceeding the minimum lot dimensions and area. The City contends the lot is too big, but the
RCW doesn’t prohibit it. In the Kristen v. Seattle case the Supreme Court did not distinguish between large and small adjustments. They propose subdivision of the balance of the site
and frontage improvements will be an issue. They are not foreclosing the discussion of improvements.
KATHY CARLSON, appellant, appeared and testified that the proposed lot contains 39,198 square feet.
MR. BECK reappeared and testified that the Health Department issue would be resolved if the appellant connected to sewer and water.
No one spoke further in this matter and so the Examiner took the request under advisement and the hearing was concluded at 9:30 a.m.
NOTE: A complete record of this hearing is available in the City of Yelm Community Development Department
FINDINGS, CONCLUSIONS AND DECISION:
FINDINGS:
1. The Hearing Examiner has admitted documentary evidence into the record, viewed the property, heard testimony, and taken this matter under advisement.
2. This request is exempt from review under SEPA.
3. Notice of this request was advertised in accordance with the Yelm Municipal Code.
4. The applicant has a possessory ownership interest in abutting parcels of property one of which contains ten acres and the other eight acres. The parcels abut Middle Road SE on the
northeast and Yelm Creek on the southwest. Improvements on the site include a single family residential dwelling and outbuildings most of which are on the larger lot. A circular driveway
from Middle Road SE provides access to the single family dwelling.
5. The applicant submitted a request for a boundary line adjustment (BLA) which combined the parcels and also created a 39,198 square foot lot which would support the existing single
family dwelling and outbuildings. The applicant proposed the BLA to allow subdivision of the balance of the site into 41 single family residential lots and exclude the newly created
lot from the subdivision. The City denied the BLA by letter from Grant Beck, Director of Community Development Director, to Scott Griffin, Cattis Construction, dated August 11, 2004.
William Lynn, attorney at law, timely filed an appeal of said denial on August 24, 2004.
6. Mr. Beck denied the BLA application finding that the newly created lot containing the home violated Thurston County Health Department codes and Washington Administrative Code (WAC)
standards which an individual well and on-site sewage disposal system on lots measuring less than one acre in size. Furthermore, the 100 foot well radius would not be contained within
the boundaries of the proposed lot. Mr. Beck denied the application as it does not meet the density requirements of the applicable Medium Density Residential (R6) zoning district of
the Yelm Municipal Code (YMC). In the staff report, Mr. Beck also denied the BLA finding that such application is one of a series of actions designed to avoid subdivision requirements
and the requirements of Yelm’s development regulations.
7. RCW 58.17 sets forth the State Subdivision Act and RCW 58.17.040 provides exemptions from said act and provides in part:
The provisions of this chapter shall not apply to…
(6) A division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots, or both, which does not create any additional lot, tract, parcel, site,
or division nor create any lot, tract, parcel, site, or division which contains insufficient area and dimension to meet minimum requirements for width and area for a building site.
Section 16.28.010 YMC sets forth the criteria for BLAs as follows:
Applications for boundary line adjustments within or outside of an approved subdivision shall be presented by the City Planner. Upon finding compliance with minimum zoning, health, building
and other land use regulations and with the Yelm Comprehensive Plan and upon finding that the adjustment will not adversely affect access, easements or drainfields, the planner shall
issue a certificate of approval….
8. The City asserts that the BLA creates a lot which contains insufficient area to meet minimum area requirements per WAC and County Health Regulations which require a minimum one acre
lot size for those lot using an on-site water source and on-site septic system. However, at the hearing the appellant offered to connect the proposed lot to City sewer and water which
eliminates Health Department concerns.
9. Section 17.15.020(A)(1) YMC provides:
A. Specific times of uses permitted in the Moderate-Density Residential District:
1. Any residential use, including single-family dwellings on individual lots, duplexes, and other multi-family dwellings, provided they do not exceed six dwelling units per gross acre
and are not less than three units per gross acre.
Section 17.15.050(A) YMC provides:
A. Minimum lot area: None….
Thus, the applicable Moderate Density Residential District (R-6) zone classification does not require a minimum lot area or maximum lot area, but does require a maximum density of six
dwelling units per acre and a minimum density of three dwelling units per acre. The City asserts that creation of a lot which does not meet the minimum density violates the criteria
for a BLA set forth in RCW 58.17.040(6).
However, said section prohibits creation of lots with “insufficient area and dimension to meet minimum requirements for which an area for a building site”. Said section does not prohibit
creation of lots which do not meet minimum density requirements. However, the Examiner agrees with Staff that the intent of the BLA exemption is to prohibit creation of lots which do
not comply with the requirements of the applicable zone. However, in the present case, the BLA creates no new lots and the density remains constant. The newly created lot meets the minimum
density requirements assuming creation of other lots of the same size. Therefore, the BLA does not alter the density of the overall BLA parcel.
10. The appellant fully intends to subdivide the larger lot and must meet all City development standards. The smaller lot with the home would not be included within the subdivision and
not subject to such requirements. However, it is reasonable for the City to consider frontage improvements across the newly created lot based upon the BLA and the requirement that the
subdivision serve the public use and interest and make appropriate provision for the public health, safety, and welfare.
CONCLUSIONS:
1. The Hearing Examiner has jurisdiction to consider and decide the issues presented by this request.
2. The appellant has established that the proposed BLA falls within the exception set forth in RCW 58.17.040(6) and also complies with the requirements of Section 16.28.010 YMC. Therefore,
the appeal should be granted and the request for boundary line adjustment approved subject to the following conditions:
1. The appellant shall connect the newly created smaller lot to City sewer and water.
2. Approval of this BLA shall not prohibit the City from requesting the imposition of frontage improvements across the smaller lot at a future preliminary plat hearing.
DECISION:
The appeal of Kathryn Dotson and Freestone DFF Yelm II LLC is hereby granted subject to the conditions contained in the conclusions above.
ORDERED this ______ day of October, 2004.
_____________________________________
STEPHEN K. CAUSSEAUX, JR.
Hearing Examiner
TRANSMITTED this _____ day of October, 2004, to the following:
APPELLANTS: Kathyrn Dotson
16440 Middle Road SE
Yelm, WA 98597
Freestone DFF Yelm II LLC
J. Scott Griffin, Jr.
Puyallup, WA 98373
AGENT: William Lynn
Attorney at Law
P.O. Box 1157
Tacoma, WA 98401
City of Yelm
Tami Merriman
105 Yelm Avenue West
P.O. Box 479
Yelm, Washington 98597